5.1.3 The Standard of Proof

Part:

Two

Chapter:

5

In
dealing with these questions, the standard of proof is a recurrent problem.
How much evidence is needed, or how convinced should we be, before reaching
the conclusion that certain sexually explicit material causes harm? The extremes
of this question are easy. Whenever a causal question is even worth asking,
there will never be conclusive proof that such a causal connection exists,
if "conclusive" means that no other possibility exists. We note that
frequently, and all too often, the claim that there is no "conclusive"
proof is a claim made by someone who disagrees with the implications of the
conclusion.

Few if any judgments of causality or danger are ever conclusive,
and a requirement of conclusiveness is much more rhetorical device than analytical
method. We therefore reject the suggestion that a causal link must be proved
"conclusively" before we can identify a harm.

The opposite extreme is also easily dismissed. The fact that
someone makes an assertion of fact to us is not necessarily sufficient proof
of that fact, even if the assertion remains uncontradicted. We do not operate
as a judge sitting in a court of law, and we require more evidence to reach
an affirmative conclusion than does a judge whose sole function might in some
circumstances be to determine if there is sufficient evidence to send the case
to the jury. That there is a bit of evidence for a proposition is not the same
as saying that the proposition has been established, and we do not reach causal
conclusions in every instance in which there has been some evidence of that
proposition.

Between these extremes the issues are more difficult. The
reason for this is that how much proof is required is largely a function of
what is to be done with an affirmative finding, and what the consequences are
of proceeding on the basis of an affirmative finding. As we deal with causal
assertions short of conclusive but more than merely some trifle of evidence,
we have felt free to rely on less proof merely to make assertions about harm
than we have required to recommend legal restrictions, and similarly we have
required greater confidence in our assertions if the result was to recommend
criminal penalties for a given form of behavior than we did to recommend other
forms of legal restriction. Were we to have recommended criminal sanctions against
material now covered by the First Amendment, we would have required proof sufficient
to satisfy some variant of the "clear and present danger" standard
that serves to protect the communication lying at the center of the First Amendment's
guarantees from government action resting on a less certain basis.

No government could survive, however, if all of its actions
were required to satisfy a "clear and present danger" standard, and
we openly acknowledge that in many areas we have reached conclusions that satisfy
us for the purposes for which we draw them, but which would not satisfy us if
they were to be used for other purposes. That we are satisfied that the vast
majority of depictions of violence in a sexually explicit manner are likely
to increase the incidence of sexual violence in this country, for example, does
not mean that we have concluded that the evidence is sufficient to justify governmental
prohibition of materials that both meet that description and are not legally
obscene.

It would be ideal if we could put our evidentiary standards
into simply formulas, but that has not been possible. The standards of proof
applicable to the legal process preponderance of the evidence, clear and convincing
evidence, and proof beyond a reasonable doubt-are not easily transferred into
a non-judicial context. And the standards of justification of constitutional
law-rational basis, compelling interest, and clear and present danger, for example-relate
only to the constitutionality of governmental action, not to its advisability,
nor to the standards necessary for mere warnings about harm. Thus we have felt
it best to rely on the language that people ordinarily use, words like "convinced,"
"satisfied," and "concluded," but those words should be
interpreted in light of the discussion in this section.